Ohio must recognize gay couple's marriage, judge rulesA federal judge issues a restraining order against Ohio's law banning gay marriage on behalf of a terminally ill man who wed his husband in Maryland.By Kevin Rector

BALTIMORE — A federal judge in Ohio has ordered state officials there to recognize the Maryland marriage of a terminally ill gay Cincinnati man on his state death certificate.

The man and his husband, who were wed in Maryland, where gay marriage is legal, expect he will die soon.

The decision by U.S. District Judge Timothy S. Black to grant John Arthur and his husband, Jim Obergefell, a temporary restraining order against the 2004 Ohio law banning recognition of gay marriage came despite a warning from the state's attorney general that it could contribute to a broad rewriting of Ohio law in favor of such unions.

Arthur and Obergefell wed this month in a special medical jet on a tarmac at Baltimore-Washington International Thurgood Marshall Airport in Hanover, Md. Arthur suffers from amyotrophic lateral sclerosis, or ALS, and can't travel without medical support.

Family and friends helped fund the expensive flight.

In their lawsuit against Ohio Gov. John Kasich, Atty. Gen. Mike DeWine and Camille Jones, Cincinnati's vital statistics registrar, the couple acknowledged Arthur was likely to die soon, and said the state's refusal to recognize their marriage, including on Arthur's death certificate, would cause them severe harm.

In his decision Monday, Black wrote that his order restraining the state from enforcing its laws applied to Arthur and Obergefell only, through Aug. 5 or as extended by the court. It will not affect Ohio or its other citizens, the order said.

But Black also took aim at the state's current law, saying Arthur and Obergefell were "not currently accorded the same dignity and recognition as similarly situated opposite-sex couples" in Ohio.

Black referred to the recent U.S. Supreme Court decision overturning the federal law banning federal recognition of same-sex marriages performed in states where they are legal, and he challenged the notion that Ohio could pick and choose which out-of-state marriages to recognize — even among those that would be illegal in Ohio.

Black found that Ohio recognized opposite-sex marriages between first cousins and minors that are legally performed in other states, though they are otherwise illegal in Ohio.

In a response to the couple's motion, Cincinnati City Solicitor John P. Curp said that although Jones had to follow state law in her job as vital statistics registrar, the city "will not defend Ohio's discriminatory ban on same-sex marriages."

In fact, Cincinnati officials named July 11, 2013, the day Obergefell and Arthur were married in Maryland, as John Arthur and James Obergefell Day in the city, which has a record of passing broader legal protections for gay and lesbian citizens than the state as a whole.

That left a challenge to the couple's motion in the hands of DeWine, who argued in his own response that any ruling in favor of the couple would set a bad precedent — threatening the state's constitutional amendment banning recognition of same-sex marriages that was supported by Ohio's voters.

When Jason Dottley and his husband ended their marriage last year, neither bothered to hire a lawyer because the couple agreed they had nothing to fight over.

“Lawyers are what you get when things get difficult,” Dottley figured.

He had no idea just how difficult getting a same-sex divorce would be.

Dottley, an actor and singer, filed for divorce in April 2012 in California, where the court system was unfamiliar with how to handle his case. He eventually sought an attorney’s advice after growing frustrated with the numerous delays.

“The lawyer I hired really couldn’t offer much help,” he said. “His advice was basically, you can either keep plugging away or you can pay me to plug away, but until the courts figure out what they’re doing, I can’t speed this along for you any more than you can.”

It’s a story familiar to a growing number of same-sex couples, even as the gay community continues to celebrate the Supreme Court's decision in June to strike down the Defense of Marriage Act. Many hope the ruling will encourage more states to legalize gay marriage, which is currently only legal in 13 states as well as the District of Columbia.

In happier times: Dottley and his former husband, Del Shores, in 2010.Getty Images file

In happier times: Dottley and his former husband, Del Shores, in 2010.

But because gay marriage is relatively new — Massachusetts became the first state to legalize it in 2004 — same-sex couples trying to get divorced have found their attempts come with high price tags and other expensive sacrifices in the few states even willing to grant them.

“Gay and lesbian couples have had to be pioneers," said Susan Sommer, director of constitutional litigation for Lambda Legal, an advocacy group devoted to gay, lesbian, bisexual and transgender legal issues. "Until things get familiar, even in states like New York, where same-sex couples can marry, initially there will be a sense of, 'How do we do this?'”

Time together: Reality vs. legality

Many same-sex couples were together for years, even decades, before they were allowed to marry. That can be an expensive problem in a divorce, as most courtrooms will only divide assets starting from the time a couple actually got married.

“A same-sex couple may have only been married for so many years, but that doesn’t mean they weren’t married in their hearts for much longer — and already co-mingled their assets or bought property together,” said Carolyn Satenberg, a New York-based family law attorney who has worked with many couples in this situation.

That’s what happened to Margaret Wenig. The New York-based rabbi got divorced earlier this year from a woman she married in 2008, and with whom she had registered as a domestic partner in 1996.

“But for the 17 years prior to our civil marriage, we lived as if we were married,” she said. “We raised children together, we merged our finances, we made each other the beneficiaries of our pensions and life insurance policies and in our wills.”

The two women were also executors and health care proxies for each other, and gave each other power of attorney. When they split, however, the court would only divide assets accumulated starting from when the couple married in 2008.

“Our divorce has not only been an emotional and financial nightmare for us but for our adult children and members of our extended family as well,” Wenig said.

While the cost of divorce varies by city and state, Satenberg estimates that a traditional, heterosexual divorce in New York typically costs in the neighborhood of $10,000; Wenig said her divorce cost her over $120,000.

Location, location, location

Last week, Minnesota and Rhode Island became the latest of only 13 states to legalize same-sex marriages. Because so few states recognize gay marriages, same-sex couples have often traveled some distance to make their unions official, and don’t live in the states where they got married.

Jason Dottley and his former husband Del Shores, pictured in 2008 when they obtained their marriage license.

Since divorce is usually granted to couples by the state where they live, states that do not recognize gay marriages typically won’t grant a divorce to a couple whose marriage they view as unlawful. That means individuals would have to return to the state where they got married to get a divorce, but that can be a financial and personal hardship, since many of these states have at least a 6-month minimum residency requirement for divorce applicants.

Sometimes, the decision over whether to grant divorce is also subjective.

Last year in Ohio, for example, where gay marriage was banned by constitutional amendment, a Columbus judge granted two men a divorce. Days later, another judge in the same court denied a divorce to a lesbian couple on the grounds of jurisdiction, pointing to the state’s ban on gay marriage.

'Layers of cost'

Sommer said her organization has seen an uptick in requests from courtrooms across the country seeking additional briefs because they want to be sure they’re taking the right steps. But that extra work keeps the meter running for attorneys of couples trying to get divorced.

Satenberg estimates that same-sex couples usually pay twice as much for divorces as their heterosexual counterparts. Triple the price if children are involved.

“By default, either one or both of the parents are not the biological parent. And that brings in an entirely new set of legal problems if the couple hasn’t taken the appropriate steps to secure legal standing,” Satenberg said. “Some couples think, ‘Oh, we love each other. We’re going to stay together forever.’ They don’t really think, ‘I should adopt my son, I should adopt my daughter.’”

Federal income tax laws also can complicate matters. Same-sex couples splitting property or assets may get zapped with a federal gift tax that doesn’t apply to straight couples.

“Heterosexual marriage has been a part of our society for as long as we’ve been a country, and therefore our case law reflects those issues, and divorces and lawyers can navigate through a pretty well defined area of law,” Satenberg said.

“But when there are no clear answers, lawyers need to spend more time making motions. They need to craft legal arguments where none have previously existed because this is a new area of law.”

Dottley got married in California in October 2008 during the brief window when the state allowed gay couples to wed. But when he started to seek a divorce in 2012, he found himself tangled in paperwork immediately.

“They would repeatedly say, ‘Well, wait a minute. We have to create a whole new form to incorporate same-sex marriages into this dissolution process,” he said of his interaction with the legal system. “A good 50 percent of the delays were from the court not knowing how to handle things.”

Dottley says he watched as many heterosexual friends experienced a much smoother divorce process. "No else was going through what I did at the time," he said.

Finding a lawyer familiar with the specialized practice of gay divorce can be expensive, so it helps to find someone sympathetic to the cause.

Ohio attorney Tom Addesa has successfully handled several same-sex divorces in Ohio, and charges a bargain $1,500 flat fee to handle uncontested same-sex divorce cases. He said a straight couple might pay about $5,000 if he were to charge his regular $250 hourly rate, but that a gay couple would pay far more because of additional documents he would need to prepare.

Gay couples are also more likely to have their divorce applications rejected, Addesa notes, which can lead to appeals, easily adding another $10,000 to the bill depending on how much work that entails.

“Those are layers of cost that straight couples never have to worry about,” Addesa said.

The stigma of starting over

Elizabeth Schwartz, a Miami attorney who works primarily with gay and lesbian families, said it’s time for the nation to start addressing divorce laws for same-sex couples. Otherwise, some people may start to disregard the law altogether.

“What some couples are doing, and it’s really frightening, is saying, ‘Well, I live in Florida, and marriage isn’t recognized here anyway, so what’s the difference? I’m just going to get married in this new relationship. The other one — who cares?’” she said. “Well, I’m sorry, that’s bigamy.”

She tells those individuals that if the relationship meant enough for them to get married in the first place, then it was real enough to get out — legally.

“I feel like I’m pissing on everybody’s marriage parade when I talk about divorce, but you can’t, as a pragmatic, family lawyer, avoid it,” she said. “Sometimes, a divorce is a beginning of a bright new chapter for people.”

WASHINGTON — All same-sex couples who are legally married will be recognized as such for federal tax purposes, even if the state where they live does not recognize their union, the Treasury Department and the Internal Revenue Service said Thursday.

It is the broadest federal rule change to come out of the landmark Supreme Court decision in June that struck down the 1996 Defense of Marriage Act, and a sign of how quickly the government is moving to treat gay couples in the same way that it does straight couples.

The June decision found that same-sex couples were entitled to federal benefits, but left open the question of how Washington would actually administer them. The Treasury Department answered some of those questions on Thursday. As of the 2013 tax year, same-sex spouses who are legally married will not be able to file federal tax returns as if either were single. Instead, they must file together as “married filing jointly” or individually as “married filing separately.”

Their address or the location of their wedding does not matter, as long as the marriage is legal: a same-sex couple who marry in Albany, N.Y., and move to Alabama are treated the same as a same-sex couple who marry and live in Massachusetts.

“Today’s ruling provides certainty and clear, coherent tax-filing guidance for all legally married same-sex couples nationwide,” Treasury Secretary Jacob J. Lew said. “This ruling also assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change.”

Gay and civil rights groups praised the ruling. “Committed and loving gay and lesbian married couples will now be treated equally under our nation’s federal tax laws, regardless of what state they call home,” said Chad Griffin, the president of the Human Rights Campaign. “These families finally have access to crucial tax benefits and protections previously denied to them under the discriminatory Defense of Marriage Act.”

But the Treasury decision could have ramifications for many gay couples’ tax liabilities, said Roberton Williams of the nonpartisan Tax Policy Center in Washington. Couples with similar incomes often pay the “marriage penalty,” with their tax liability as a couple being much higher than it would be if they were single.

At the same time, same-sex couples will also be able to file amended returns for certain prior tax years, meaning that many couples might be eligible for refunds. Couples do not have to file amended returns if they do not want to, a senior Treasury official said, meaning that couples who might pay the marriage penalty would not owe back taxes.

But the ruling creates complications for same-sex couples who live in any of the 37 states that do not recognize their marriages. Previously, such couples filed federal and state tax returns as individuals. Now, they will have to file their federal returns as other married couples do, but may be required to file their state returns as individuals.

“There’s going to be a cumbersome workaround,” said Nanette Lee Miller of Marcum L.L.P., a public accounting firm. She sees it as a paperwork bother more than a financial issue.

States might also respond to the federal ruling with changes of their own. “Most state income tax regimes begin with federal taxable income as the starting point,” Marvin Kirsner, a tax lawyer at Greenberg Traurig, said in an e-mail. “These state taxing authorities will have to figure out how to deal with a same-sex married couple who file a joint income tax return for federal tax purposes.” He added,

“We will need to see guidance from each nonrecognition state to see how this will be handled.”

The rule change is likely to provide a small increase for federal revenue, as more same-sex couples pay the marriage penalty, Mr. Williams said, describing it as a “rounding error.” But it would be partly offset by new federal spending on benefits for same-sex spouses.

The ruling applies to all legal marriages made in the United States or foreign countries. But it does not extend to civil unions, registered domestic partnerships or other legal relationships, the Treasury said.

The Treasury ruling is one of many that are starting to emerge from all corners of the federal government as Washington changes regulations to conform with the Supreme Court decision.

Separately, the Health and Human Services Department said Thursday that Medicare would extend certain key benefits to same-sex spouses, “clarifying that all beneficiaries in private Medicare plans have access to equal coverage when it comes to care in a nursing home where their spouse lives.”

But federal agencies are not moving in lock step. Instead, they are creating a patchwork of regulations affecting gay and lesbian couples — and may be raising questions about discrimination and fairness in the way that federal benefits are distributed.

Medicare and Treasury officials have said they would use a “place of celebration” standard for determining whether gay couples are eligible for benefits. That means same-sex couples would receive benefits as long as they are legally married, regardless of where they live.

But the Social Security Administration is now using a “place of residence” standard in determining spousal benefits, and a gay couple in Alabama might not receive the same benefits as a gay couple in New York until final determinations are made or Congress acts. The Obama administration has pushed federal agencies to ensure the Supreme Court’s ruling is carried out quickly and smoothly.

“It would be nice if they were consistent,” Ms. Miller said. Creating federal regulations is a process and could change, she said.

Supreme Court's same-sex marriage ruling ripples through lower courtsGay marriage activists are winning more cases in lower courts since the Supreme Court struck down part of the Defense of Marriage Act.By Matt Pearce

Same-sex marriage is picking up steam in the courts. A federal judge ordered Ohio on Monday to recognize gay marriages on death certificates, but used broad language that could be cited to mount a broader challenge to the law barring such unions.

It was the third judicial decision in the last week favoring same-sex marriage rights. In Utah, a federal judge struck down a gay marriage ban Friday and refused to suspend his decision Monday. A federal appellate court also rejected Utah's plea to put his ruling on hold.

And on Thursday, the New Mexico Supreme Court formally recognized same-sex marriage, which is now legal in 17 states and the District of Columbia.

The scenarios must have sounded all too familiar to U.S. Supreme Court Justice Antonin Scalia. In June, when the court issued a landmark decision ordering the federal government to recognize same-sex marriages performed in states where they were legal, Scalia warned of what could come next.

"How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," Scalia wrote in a scathing dissent in United States vs. Windsor, which struck down part of the federal Defense of Marriage Act but left state laws intact. "No one should be fooled; it is just a matter of listening and waiting for the other shoe" to drop.

Now, for opponents of same-sex marriage, the other shoe is dropping.

"We're on a roll!" said Jon Davidson, legal director of Lambda Legal, an advocacy group that has been handling cases against same-sex marriage bans across the country. "Three work days in a row, we've had victories," and all of them cite the Supreme Court's Defense of Marriage Act ruling.

In the most recent decision, U.S. District Judge Timothy S. Black ruled in Cincinnati that Ohio had to recognize a gay couple as spouses on one of the men's death certificate. Ohio bans same-sex marriage, so the pair had flown to Maryland while one of the men was terminally ill and wed on an airport tarmac.

Although Black's decision applied only to death certificates for couples married out of state, his ruling criticized Ohio's same-sex marriage ban and opened a door for other couples to challenge the law more broadly.

Alphonse Gerhardstein, a civil rights lawyer in Cincinnati who handled the case, said the Defense of Marriage Act ruling was central to his attack on Ohio's ban.

"I just took that same argument and went to Ohio and said, 'How can you now refuse to recognize marriages from other states if the federal government can't do it?'" Gerhardstein said. The Defense of Marriage Act ruling "is a huge engine behind this."

At least two federal judges, in their rulings on state bans, have cited Scalia's warning that the Supreme Court's ruling would ripple through the U.S.

"Now it is just as Justice Scalia predicted," Black wrote in his Ohio ruling. "The lower courts are applying the Supreme Court's decision, as they must, and the question is presented whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples. ... Under the Constitution of the United States, the answer is no."

A similar decision Friday in Utah resulted in the state's ban on same-sex marriage being thrown out. Gay and lesbian couples flocked to wed as Utah officials scrambled to challenge U.S. District Judge Robert J. Shelby's ruling, which quoted and embraced Scalia's warning.

"The court agrees with Justice Scalia's interpretation," Shelby, a President Obama appointee, wrote, perhaps ironically, given that Scalia had criticized the Supreme Court's ruling as an overreach. Shelby said worries about overriding Utah's constitution and Legislature were "insufficient to save a state-law prohibition that denies the plaintiffs their rights to due process under the law."

The New Mexico Supreme Court did not cite the Defense of Marriage Act ruling so heavily. But it did follow a similar argument, ruling that denying same-sex couples the right to marry violated the state's equal-protection laws.

And in September, a New Jersey Superior Court judge said the ruling gave the state's same-sex civil unions "new significance" now that federal agencies were granting benefits only to couples who were formally married. The judge struck down the state's ban on gay marriage, and Republican Gov. Chris Christie withdrew his appeal of the ruling to the state's Supreme Court.

David Cruz, professor of law at the USC Gould School of Law, said judges now seemed more likely to expand upon the Supreme Court's ruling in favor of same-sex marriage.

"Part of what we're seeing is that, culturally, the judiciary — both federal and state judges — are more receptive to the logical, principle-based arguments that same-sex couples have been seeking for the right to marry since the very beginning of the 1970s," Cruz said.

In doing so, judges have overridden legislators and voters who had approved the bans before national popular opinion began to tilt in favor of same-sex marriage.

"It is patently wrong and unjust that the people of Utah should lose their right to define marriage because of the ruling of a single Obama appointee to the federal bench," said Brian S. Brown, president of the National Organization for Marriage, which opposes same-sex marriage.

"It roils the body politic and does great damage to the people's confidence in the judicial system itself as a lone federal judge attempts to usurp the sovereignty of the state," Brown added in a statement, calling for the U.S. 10th Circuit Court of Appeals to halt same-sex marriages in Utah while the state appeals. The 10th Circuit has twice denied the state's emergency requests.

But the idea that a judge should not settle such a controversial question resonated with Gerhardstein, the Ohio lawyer.

"In the end, social change is best generated with public support," he said, which is why the Ohio lawsuit addressed only death certificates rather than the right to same-sex marriage.

"That would be wonderful if Ohio would take that opportunity to go ahead and repeal [the ban], because then you would have a stronger and more robust protection for the minority," he said.

DENVER — Less than two weeks after a federal judge cleared the way for gay couples to wed in Utah, leaders from the socially conservative state on Tuesday asked the United States Supreme Court to halt the tide of same-sex marriages.

The move comes as Utah appeals a Dec. 20 ruling that overturned its voter-approved ban on same-sex marriage. While gay couples across Utah said the decision gave them a foothold as equal citizens of their state, state officials said the decision, by Judge Robert J. Shelby of Federal District Court in Salt Lake City, had created chaos while undercutting Utah’s right to limit marriage to one man and one woman.

In their filing on Tuesday, Utah officials said the state would suffer serious harm as same-sex marriages continued in county courthouses and government buildings across the state. Each one is “an affront to the sovereignty of the state and its people,” and “openly flouts” Utah’s ability to define what constitutes a marriage inside its borders, the state wrote.

Utah’s request landed on the desk of Justice Sonia Sotomayor, who handles cases in Utah and other Rocky Mountain States. She could rule on the state’s request for a stay, but is expected to refer the matter to the entire court. The justices could rule within days.

Justice Sotomayor ordered the other side in the case — three gay couples who sued to challenge Utah’s 2004 ban on same-sex marriage — to file their response to Utah’s stay request by noon on Friday.

Utah has already twice tried and failed to suspend the unions while it appeals Judge Shelby’s decision. He ruled that the ban was unconstitutional and denied gay couples equal protection under the law and their “fundamental right” to marriage.

His ruling appeared to catch Utah officials off guard, and they hurried to request a stay of his decision as hundreds of gay couples poured into government offices to get married. Judge Shelby refused to suspend his ruling, and the Court of Appeals for the 10th Circuit, in Denver, also declined to block the marriages.

That has allowed approximately 900 same-sex couples to marry in less than two weeks, a tidal shift in a heavily Mormon state where same-sex marriage is opposed by many Republican leaders and the Church of Jesus Christ of Latter-day Saints.

But on Tuesday, Utah again raised the specter that those new unions could be dissolved.

If Utah ultimately prevails in its legal fight, it said it would face the “thorny problem of whether and how to unwind” the new marriages. The state said its burden would increase with additional marriages. Government offices have already started to provide marital benefits to same-sex couples, and advocates for gay rights say that dissolving hundreds of unions would have profound effects on health insurance, parental rights, hospital visits and many other aspects of life for Utah’s gay residents.

The state said it was asking for a stay in part to protect gay couples, saying they would suffer financial harm and a loss of dignity if their marriages were voided on appeal.